TCS Daily

A Good Year for Free Speech?

To listen to some people
talk, 1984 came 20 years late. But despite all the talk of "crushing of
dissent," I'd argue that, in many ways, free speech made great strides in
2004, and that the people who have been complaining have missed the story -- or
hope that you will.

2004 saw the
infamous Janet Jackson "wardrobe malfunction" at the Super Bowl, and
FCC fines against Howard Stern. But now Stern is going to satellite radio, and
the FCC has announced that satellite
broadcasts don't fall under the statute empowering its broadcast indecency rules. So
Stern will be free to say whatever he wants without fear of FCC fines, and -- apparently
-- lots of people will be happy to pay to hear him. Everybody wins.

"In
the last 12 months, the RIAA lost a landmark suit against Grokster (essentially
legalizing peer-to-peer software), lost a suit to Verizon (holding that it did
not have to provide names of its subscribers who the RIAA wanted to sue), and
has yet to actually win against any of the thousands of individuals it has sued
in court (some of the cases have been settled out of court, most are still
pending). Suddenly, the RIAA isn't looking so much as devastating as it does
merely pathetic."

And hurray for that. As the
item excerpted above notes, the RIAA has done enormous damage to free
expression, but it's bumping up against its limits now. I wrote about this a while back:

"Thanks
to the predatory tactics of the motion picture and record industries, the
reputations of intellectual property and the whole sphere of entertainment law
have undergone a dramatic change among my law students. Just a few years ago,
both were regarded as cool and presumptively good. Now the presumption is the
reverse, and the entertainment industries are in disrepute.

"It
is possible that the courts will bring on this change. . . .

"And
if the courts don't do the job, perhaps politics will. Republicans are
beginning to notice that the chief beneficiaries of this intellectual property
explosion are entertainment industries that support Democrats. Legislation to
limit their power would deprive the opposition of funding, while winning the
affection of the tens of millions of voters - especially younger,
technology-savvy voters - whose slogan is "Keep your grubby laws off my
computer." Will Republicans take advantage of this opportunity? That
depends on whether they want to be a majority party - or history."

With solid control of both
Congress and the Executive, the Republicans have it within their power to get
rid of the DMCA and related laws that restrict free speech in the name of
intellectual property, and to deal a blow to the industries and people who have
been their most determined, well-funded, and vitriolic opponents. Extend
Michael Moore's copyrights? The politics of this situation ought the favor free
speech.

And, of course, 2004 saw
another stage in the growth of the blogosphere. In fact, this week's Time,
which named President Bush its Person of the Year, named the Power Line blog its "blog of the
year," for its central role in the exposure of Dan Rather's
forged-documents scandal. As Time wrote:

"The
story of how three amateur journalists working in a homegrown online medium
challenged a network news legend and won has many, many game-changing angles to
it. One of the strangest and most radical is that the key information in 'The
61st Minute' came from Power Line's readers, not its ostensible writers. The
Power Liners are quick, even eager, to point this out. 'What this story shows
more than anything is the power of the medium," Hinderaker says. 'The
world is full of smart people who have information about every imaginable topic,
and until the Internet came along, there wasn't any practical way to put it
together.'"

Now there is. A phenomenon
like 'The 61st Minute' is the result of the journalistic equivalent of
massively parallel processing. The Internet is a two-way superhighway, and
every Power Line reader is also a Power Line writer, stringer, ombudsman and
editor at large. There are 100,000 cooks in the kitchen, and more are showing
up all the time. Call it the Power Line effect. Conventional media may have
more readers than blogs do, but conventional media can't leverage those readers
the way blogs can. Want a glimpse of the future of blogs? The more popular
blogs are, the stronger they get. And they're not getting any less popular.

That's absolutely right.
(And, ahem, some of us were pointing it out three years ago --
but now even Michael
Kinsley has noticed!) And it's why 2004 has been a great year for free
speech. May 2005 be even better.